A Short History Lesson In D.C. Bar Discipline
It is a little known fact that the District of Columbia Court of Appeals, the District of Columbia Bar, the Board on Professional Responsibility and the Office of Bar (now Disciplinary) Counsel all came into existence in the early 1970s.
The court was created in 1970 and birthed the Bar, the Board and Bar Counsel in Rules I and XI.
Unlike many courts at that time that had to grapple with the creation of a disciplinary system after the Clark Committee report, the court lacked any historical framework for the process of disciplining errant attorneys.
The most significant case from the early years (read the time of Fred Grabowsky as Bar Counsel) is In re Colson. There the en banc court interpreted a provision of the District of Columbia Code to mandate permanent disbarment for all convictions involving moral turpitude and laid out the procedures for determining moral turpitude.
Colson is also noteworthy for the dissent of Judge Stanley Harris, which lays out in as much detail as we will likely see the process that led to the delegation of power to the BPR.
I feel strongly and I believe my view is shared by the great majority of persons who are knowledgeable in the field of professional discipline that the basic decisional responsibility for the sanction to be imposed in a disciplinary proceeding should rest upon the judges of a jurisdiction’s highest court, rather than upon the members of a court-created disciplinary body. After all, our Board on Professional Responsibility is not akin to an administrative agency which is presumed to have an expertise which we lack; we should be quite as capable in this area as our appointed Board members, and we should be free of even the hint of potential peer pressures which might make a particular respondent feel that he or she can receive impartial consideration only from judicial officers.
Nonetheless, the majority of my colleagues effectively concluded to the contrary. For reasons which remain inexplicable to me, this court, in adopting the above-quoted provision, has conferred what amounts to a quasi-agency status upon the Board which we have created and whose members we appoint.
While I disagree with the adoption of such a provision, I recognize that differences of opinion make, among other things, horse races and dissenting opinions. However, this case came along soon thereafter, and the majority promptly found itself confronted by its new creation.
In 1980, the en banc court decided In re Kerr and held that attorneys convicted of a crime of moral turpitude could never seek reinstatement.
The decision to create deference to the BPR on sanction and to permit the BPR to hire and fire Disciplinary Counsel were two highly consequential and ill-advised delegations of authority that have led to a system inappropriately subject to influence by the organized Bar.
More to follow on that subject.
As I mentioned in an earlier post today, the Court has decided six en banc cases in the post-Fred Grabowsky era. All were argued and decided during my tenure from 1984 to 2001; three were argued by me. I will discuss the cases and their significance in roughly the order in which they were decided.
First was In re Reback & Parsons. The 1986 decision involved a matter in which a division of the court had suspended two attorneys for a year and a day (then meaning a separate fitness hearing before reinstatement) for neglect and misrepresentation. The attorneys had signed the client’s name to a complaint after the initial divorce petition had been dismissed and failed to so advise the client and the court.
The en banc court reduced the suspensions to six-months. The judges whose sanctions were reduced – Judges Terry and Newman – were none too pleased.
The Reback & Parsons precedent was quickly rendered largely moot by the decision in In re Hutchinson. There a division of the court had suspended an attorney for six-months (the same ultimate sanction as Reback and Parsons) for lying to the SEC in an insider trading investigation in order to conceal ill-gotten profits.
The Hutchinson court held that a six-month suspension was not the ceiling for dishonest conduct without prior discipline and articulated its fullest vision of the considerations at play in determining disciplinary sanction. It remains one of the most significant disciplinary decisions of the en banc court.
It took the court several years to hold in a division that disbarment was possible for serious dishonesty without prior discipline.
That case – In re Goffe – was also mine and represented the culmination of years of effort to get the BPR to take serious dishonesty seriously.
From the Goffe decision
We do not agree that Hutchinson was intended to limit possible sanctions in attorney dishonesty cases to a maximum three year suspension. As we have previously noted, neither Hutchinson nor Reback “purported to establish a ceiling for misrepresentation cases.” Kennedy, 542 A.2d at 1229. The seriousness and pervasiveness of the pattern of misconduct here is unparalleled in this jurisdiction. Indeed, the misconduct is more severe than the misconduct in Garner, supra, where we concluded, as already noted, that “disbarment is well within the range of sanctions for similar misconduct in the District of Columbia.” Garner, 636 A.2d at 421. The strictness with which other jurisdictions have dealt with similar misconduct is also persuasive. Respondent’s pattern of misconduct, the absence of meaningful mitigating factors, and the need to protect the public and governmental institutions warrant a sanction consistent with Garner.
The battle over dishonesty cases continues to this day.
The Hutchinson decision was also a bit of revenge for Judge John Terry (a wonderful man and judge who was my sponsor for Supreme Court Bar membership). The revenge was expressed in Judge Newman’s concurrence
In my dissent in In re Reback, 513 A.2d 226, 234 (D.C.1986) (en banc), I made clear that I believed the six months’ suspension imposed on Reback and Parsons was woefully inadequate; I thought the appropriate sanction was suspension for one year and a day. It was clear to me then that the inadequate sanction imposed in that case would come back to haunt us in future cases. In this case it does. The en banc court struggles to distinguish Reback to justify a greater sanction in this case. I decline to join in that struggle. The sanction in Reback was seriously deficient. A sanction here of a one-year suspension, however, is appropriate.
I inherited Hutchinson from the late Jackson Rose and argued it before the BPR and the court.
Next came In re Peter Wolff. Wolff had been convicted in Virginia of selling pictures depicting children engaged in sex acts. The en banc court agreed with the division’s disbarment on grounds that the crime involved moral turpitude. The case has little if any precedential value and, indeed, I could not find an online link to the (very short) decision.
I well remember the Wolff en banc oral argument, principally for the testy exchanges between Judge Nebeker and Wolff ‘s attorney, who later gained a measure of fame for his representation of John Bobbitt.
In re Addams involved the en banc determination that disbarment was the presumptive sanction for intentional or reckless misappropriation. Many of the difficult issues that the disciplinary system faces regularly involve application of Addams and its progeny. One of the landmark cases in D.C. bar history.
I took over In re McBride from another attorney at Bar Counsel after the court had granted rehearing en banc. The division had disbarred an attorney convicted of misdemeanor fraud.
The case was quite sympathetic.
McBride, a member of the District of Columbia Bar since 1954 and a 28-year honored veteran of the Department of Justice, had retired in 1983 to become a solo practitioner. According to McBride’s brief, his practice consisted of many pro bono referrals from his church, including a request that he help Mrs. Shahid and her two young children, immigrants from Pakistan, change their immigration status from visitor to resident alien. With McBride’s assistance, Mrs. Shahid’s petition to change her immigration status was conditionally granted. But as she made preparations to fly to Pakistan to appear personally at the United States Consulate there, she grew fearful that some snag in the process would prevent her from returning to the United States and would require her to stay in Pakistan where her physically abusive ex-husband resides. She panicked and pleaded with McBride to help her obtain an American passport to use to reenter the United States in case her new immigration status was not approved. McBride helped Mrs. Shahid provide the passport office with two identification documents that belonged to a third person. McBride accompanied her to that office and remained with her as she applied for and picked up the passport. McBride received no financial or any other benefit from his actions, all of which occurred within four days. On the other hand, he has never disputed that he knew his conduct was dishonest and designed to secure for Mrs. Shahid a passport to which she was not entitled.
The division applied the Colson precedent to disbar McBride.
The en banc court considered the question of whether to overrule Colson and Kerr in whole or in part.
The unanimous court overruled Colson and Kerr in two respects. Misdemeanor convictions no longer could involve moral turpitude per se – every convicted misdemeanant gets a hearing.
More significantly, McBride overruled the holding in Kerr that made disbarment for a moral turpitude conviction permanent. That aspect of the case had led to a significant number of reinstatement petitions, many of which have been granted after felony convictions.
My favorite moment involved an exchange with Judge Terry toward the end of my argument when he asked me
What is most important to you [Bar Counsel] here?
My answer was for the survival of the procedures laid out in Colson for determining moral turpitude.
The court left the procedures intact.
Judge John Ferren had been the sole dissenter in Kerr. My sense is that he greatly enjoyed the argument and seeing his dissent later written into an unanimous opinion authored by him overruling it.
Finally, there is In re Abrams, which was my case from soup to nuts.
We had just finished the Abrams hearing when he was pardoned of the underlying conviction by President George H. W. Bush. As they say, the case took a new direction after that little twist.
The division (Judge Terry again as author) held that a Presidential pardon precluded the imposition of any professional discipline, relying principally on the 1866 Supreme Court decision in Ex Parte Garland. That 5-4 decision involved the restoration of practice privileges before the Supreme Court to a pardoned Confederate.
The en banc court held that the pardon did not act to insulate the beneficiary from sanction in a 5-4 decision authored by the late (and also wonderful) Judge Frank Schwelb.
No moral character qualification for Bar membership is more important than truthfulness and candor.” In re Meyerson, 190 Md. 671, 59 A.2d 489, 496 (1948). An attorney is required to be a person of good moral character not only at the time of admission to the Bar, but also thereafter. In re Rouss, 221 N.Y. 81, 116 N.E. 782, 783 (1917) (Cardozo, C.J.). The pardon could not “reinvest [Abrams] with those qualities which are absolutely essential for an attorney at law to possess or rehabilitate him in the trust and confidence of the court.” In re Lavine, 2 Cal.2d 324, 41 P.2d 161, 163 (1935) (citation omitted). Accordingly, we hold that this court’s authority to impose professional discipline was not nullified by the presidential pardon.
To prepare for the en banc argument, I did two things of significance.
First, I read Chief Justice Rehnquist’s history of the court. It was incredibly helpful and insightful in understanding the high court in the immediate aftermath of the Civil War. Because I anticipated the possibility of Supreme Court review (Abrams later petitioned for certiorari and did not get a single vote), it shaped my arguments for that eventuality.
Second, I took my darling daughter Hannah Frisch (now Caprice) to the cemetery at the Gettysburg National Battlefield and together we recited the Gettysburg Address. I cherish that memory.
There have been no en banc disciplinary cases in D.C. since the 1997 Abrams decision. (Mike Frisch)